Massachusetts divorce lawyer Nicole K. Levy analyzes a recent Supreme Judicial Court decision addressing the time limits for durational alimony.
It is well established that under the Massachusetts Alimony Reform Act (ARA), the duration of alimony is limited for marriages of less than 20 years. The duration of alimony for marriages of less than 20 years is a percentage based on the length of the marriage; the longer the marriage, the longer the term of alimony. In 2014, the Supreme Judicial Court (SJC) held in Holmes v. Holmes (2014) that the clock starts ticking on the durational alimony starting on the judgment of divorce. In a more recent decision, Snow v. Snow (2017), the SJC has held that the durational clock for alimony might not start ticking until after the Judgment of divorce has been entered.
Back in 2014, the Holmes decision resolved an important question about durational alimony in Massachusetts. Under the ARA, the “length of the marriage” is defined as the date of the legal marriage to the date of service of a complaint for divorce. Notably, the ARA does not measure the length of the marriage based on the date of the marriage until the date of the divorce. Because of this, questions arose about when the clock should start ticking on durational alimony. Should the durational clock start when the complaint for divorce is served? Should it start upon the entry of a temporary order for alimony? What about future alimony ordered through a Complaint for Modification? Should the alimony clock start ticking at the judgment of divorce or some other date?
In Holmes, the Court held definitively that the ARA’s durational clock starts ticking on the date that the judgment of divorce enters. Period. For practitioners, the Holmes decision was pleasingly clear. Even though the “length of the marriage” is defined as the date of marriage to the date of service of the complaint for divorce, the time limit for receiving durational alimony starts running only upon the final judgment of divorce. Even if a spouse paid alimony pursuant to a temporary order while the divorce was pending, the ARA’s durational limits do not kick in until the divorce is over. Moreover, even if the judgment of divorce did not include an order for alimony, the clock starts ticking at the entry of judgment for any future alimony order (i.e. alimony granted pursuant to a Complaint for Modification after the divorce). The Holmes rule left no room for ambiguity.
The Holmes decision was pleasingly decisive. It announced a clear rule that everyone could follow for the start of durational alimony in Massachusetts. Three years later in Snow v. Snow, however, the SJC weakened the Holmes rule to the consternation of some family law professionals.
Table of Contents for this Blog
- Snow v. Snow: the Exception to the Holmes Rule
- What Facts Caused the SJC Extend the Durational Clock in Snow?
- What Were the SJC’s Legal Grounds for Extending the Durational Clock Beyond the Holmes Rule?
- Concerns with Snow: Broad Decisions can have Unintended Consequences
- What Are Some Potential Impacts of the Snow Decision?
- Bottom Line: Holmes is Still Good Law, but Snow Means More Work for Overburdened Probate and Family Court Judges
Snow v. Snow: the Exception to the Holmes Rule
In Snow, the SJC appeared to walk back the Holmes rule, holding that the durational clock on the former Wife’s alimony should start ticking after the judgment of divorce, starting on the date that Hon. David J. Dacyczyn of the Berkshire Probate and Family Court allowed the former Wife’s Complaint for Modification seeking post-divorce alimony. The decision raises several concerns moving forward about durational alimony, as well as questions about why the SJC felt compelled to disturb the judgment at all, given the broad discretion afforded to probate and family court judges under the ARA to deviate from the durational limits when the unique facts of a case require it.
What Facts Caused the SJC Extend the Durational Clock in Snow?
The facts of the Snow case were unusual. The parties were married for 19 years. At the time the divorce was filed, the parties resided in New York. In 2010, the Husband was granted a divorce after the Wife failed to attend a mandatory hearing in the divorce case. In essence, the Wife was defaulted from the divorce for non-attendance. Unsurprisingly, the New York court did not award alimony to the Wife following her non-appearance at the hearing. Nor did the New York court enter any findings of fact pertaining to alimony in its judgment of divorce.
(Before going any further, it is important to note that under the ARA, the duration of alimony for a marriage of 15 years or greater is equal to 80% of the length of the marriage. For the Wife in Snow, this meant that the duration of alimony following her 19-year marriage would be more than 15 years. Thus, under Holmes, if the Wife’s durational clock started ticking in 2010, she would be eligible for alimony all the way through the year 2025.)
In 2014, the Wife in Snow returned to Court, this time in Massachusetts, where both parties now resided. In keeping with Massachusetts law, the Wife filed a Complaint for Modification seeking alimony. Judge Dacyczyn allowed the Wife’s request. However, in his judgment of modification, the judge did not follow the Holmes decision in setting the duration of alimony. Instead of finding that the clock started ticking on the Wife’s alimony on the date of the judgment of divorce, the judge chose to start the clock four years later, commencing on the date he first ordered temporary alimony. Thus, the Wife would receive alimony through the year 2029 instead of through 2025.
What Were the SJC’s Legal Grounds for Extending the Durational Clock Beyond the Holmes Rule?
It should be noted that under the ARA, a probate and family court judge has the authority to extend alimony beyond a durational limit if the judge makes a “written finding by the court that deviation beyond the time limits … are required in the interests of justice”. Given the facts of the case, it appears clear that the SJC could haveallowed Judge Dacyczyn’s decision to stand under the ARA’s broad exception. In doing so, the SJC would have allowed the judgment to stand without disturbing the fundamental rule articulated in Holmes. However, the SJC took a much different approach in Snow.
In Snow, the SJC held that the durational clock on alimony could not start ticking until after the judgment of divorce because the New York judge failed to enter findings of fact pertaining to alimony at the time of the original divorce:
The husband contends that the issue of alimony was adjudicated in the New York divorce action because the wife initially requested maintenance and the judge awarded no maintenance. But the judge made clear that the wife “did not pursue the claim” for maintenance, and declared that he did not award maintenance to the wife because she was capable of self-support and ultimately did “not seek maintenance” from the husband. If the request for alimony had been pursued, the judge in New York, like his counterpart in Massachusetts, would have had a statutory obligation to consider specific factors in determining the duration and amount of maintenance. … But the judge in New York did not address any of those factors in denying maintenance because, at the time of judgment, the wife no longer sought alimony. … Where, as here, the wife did not pursue her request for maintenance and the judge in New York made no findings based on the statutory factors in awarding no maintenance, we conclude that the wife’s complaint in Massachusetts was an initial complaint for alimony rather than a complaint for modification.
Concerns with Snow: Broad Decisions can have Unintended Consequences
The SJC’s decision in Snow is troubling on several fronts. The first concern with the Snow decision is the Wife defaulted in the New York divorce by failing to attend a required hearing. Given that the Wife would have been eligible for alimony all the way through 2025 had the Court followed Holmes, it is somewhat puzzling that the SJC elected to reward the defaulting Wife by extending alimony an additional four years. A second, more pressing concern with the Snow decision is that it is not unusual for a judgment of divorce to enter without findings of fact pertaining to alimony, and Snow arguably creates a new class of cases that operates outside of the intent of the ARA.
Examples of cases in which findings of fact on alimony might not enter include:
- Divorce cases in which the alimony recipient failed to seek alimony at trial. One outcome of the Snow decision will be an increase in litigation, as parties (and judges) must now prolong trial and enter specific evidence pertaining to alimony, even if neither party is seeking alimony at trial. Probate and family court judges are already dangerously overburdened with (by far) the busiest dockets in the state. Following trial, parties must frequently wait more than 6 months for overwhelmed judges to write a judgment and findings of fact. Following Snow, the wait will be prolonged as overburdened judges must now enter detailed findings of fact relating to alimony, even if neither party seeks alimony at trial.
- Divorce agreements that are silent on alimony. More than 95% of Massachusetts divorces are resolved by agreement. More than 50% of probate and family court litigants are not represented by attorneys. This means that our hugely overburdened probate and family court judges must process and review dozens (and dozens) of agreements entered by self-represented parties every week. Many of these agreements will fail to address alimony. (Indeed, only a small fraction of agreements between unrepresented parties will include an alimony order.) Following Snow, probate and family court judges must risk upsetting the delicate balance that led unrepresented parties to reach agreement by forcing parties to address alimony.
- Ambiguous divorce agreements. We have written several blogs over the years reviewing the significance of merging vs. surviving divorce provisions. An agreement that merges alimony can be modified later upon a change in circumstances. If alimony is waived under a surviving agreement, however, that waiver is permanent. However, it is not uncommon for a separation agreement to say something like this: “all issues relating to the minor children shall merge, while all other issues shall survive the judgment of divorce.” Before Snow, it was always assumed that such a provision included a permanent waiver of alimony. Following Snow, however, this is not so clear.
What Are Some Potential Impacts of the Snow Decision?
One thing seems clear: the Appeals Court will be addressing a number of appeals arising out of the Snow decision in upcoming years. In some ways, the Snow decision is similar to another appellate decision that seemed to expand the scope of post-divorce filings in Massachusetts. In Spilhaus v. Spilhaus (2015), the Appeals Court held that a husband’s pension could be divided 12 years after the parties’ divorce agreement was finalized, where the agreement did not specifically divide the pension, even though the parties had discussed the pension with their mediator prior to their divorce. Commenting on the Spilhaus case at the time, Attorney Owens wrote:
Spilhaus significantly broadens the class of assets that can be divided after a divorce by suggesting that even if the parties knew about and discussed an asset during the mediation process, the asset could still be divided many years after the divorce if (a.) the asset was not specifically identified in the divorce agreement and (b.) there is evidence that the parties failed to divide the property due to a mistaken understanding of the asset’s value.
However, there is a big difference between the Snow and Spilhaus decisions. Spilhaus was an unpublished opinion of the Appeals Court, which means it is not binding as precedent on lower courts. The Snow decision, on the other hand, is binding on all Massachusetts courts, including the Appeals Court. It is likely to have more far reaching consequences.
By placing the burden on judges to enter findings of fact pertaining to alimony, even in cases in which alimony is not a contested issue, the Snow decision risks the creation of a new class of cases that fall outside of the ARA. This already happened once, in 2015, when the SJC ruled that ARA provisions calling for the reduction or termination of alimony when a payor reaches federal retirement age, or when a recipient cohabitates with a new romantic partner, only apply to pre-2012 divorce cases. The Snow decision is unlikely to have such a broad impact, but it does beg the question: why didn’t the SJC address the durational issue in Snow in a less sweeping opinion? There were several ways for the SJC to uphold the lower court judgment without fundamentally disturbing the clear rule articulated in Holmes. A scalpel was available; the SJC seemed to opt for the cudgel instead.
Bottom Line: Holmes is Still Good Law, but Snow Means More Work for Overburdened Probate and Family Court Judges
Snow introduces uncertainty into cases in which a probate and family court judge (or separation agreement) failed to consider alimony at the time of the divorce. However, most separation agreements will probably provide sufficient clarity on alimony to prevent a party from filing a post-judgment complaint for alimony (following the Snow rule), rather than a complaint for modification (following the Holmes rule). For divorces that ended after a trial, or upon one party’s failure to attend a hearing, the Snow decision may be a source of greater anxiety.
That said, the biggest impact of Snow probably won’t be its effect on substantive alimony cases. The impact is likely to be more subtle: already overworked, understaffed and underpaid probate and family court judges who will be forced to enter more findings of fact, even in cases in which alimony is not addressed. The same judges will have to scrutinize divorce agreements more carefully, slowing the review and approval process each day, despite ever-increasing caseloads, in order to ensure that they are not creating a future problem by approving an agreement that omits alimony. Parties who are represented by counsel will pay more in legal fees at trial, as their attorneys devote more time to presenting evidence and preparing proposed findings of fact for alimony, even when alimony is not an issue in the case.
In short, the real effect of Snow is likely to be felt through additional drags on an already overburdened family court system that receives less than 17% of the annual funding than Massachusetts devotes to Superior and District Courts – whose combined civil case loads (excluding small claims) are exceeded by the Probate and Family Court, and whose criminal dockets are guided by independently funded district attorneys and public defenders. Probate and Family Court judges stand alone in dealing with a caseload of mostly self-represented parties filing do-it-yourself cases without the aid of attorneys. Decisions like Snow affect everyone by increasing the workload of Probate and Family Court judges dramatically while benefitting only a tiny fraction of litigants.
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About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.
Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.